Episode 44: Shutdown averted, OPT litigation, the upcoming H-1B cap season

It’s Oct. 5, and this is your BAL Immigration Report.

• Government remains open for the time being.
• The Supreme Court declines to hear a case challenging Optional Practical Training.
• Employers turn an eye toward the upcoming cap season.

“There is a lot of value for employers to start the H-1B planning process as early as possible. This will allow you to review the population and determine and if there are alternate pathways available to continue to attract and retain talent.”

—Nazish Ali, BAL Senior Associate

U.S. news

Congress averts shutdown

Federal immigration services continue to function after Congress agreed to a 45-day spending measure last Saturday, averting a government shutdown for the time being. The bill funds government until Nov. 17. It also extended immigration programs that had been scheduled to sunset on Oct. 1, including E-Verify and special programs for foreign religious workers and doctors.

A shutdown would have serious consequences on immigration services, particularly those at the Department of Labor. Congress must pass another spending measure to keep the government open beyond Nov. 17.

OPT program case declined

The Supreme Court has declined to hear a case challenging the legality of Optional Practical Training, or OPT, programs for F-1 students.

“The decision of the Supreme Court was not a surprise, seeing as how the government had won at every lower level. But it brings much-needed certainty to a program critical to retaining talent in the United States,” said BAL Partner Lynden Melmed, former chief counsel of U.S. Citizenship and Immigration Services, in an interview with Forbes.

OPT allows F-1 students to obtain up to 12 months of temporary employment that’s directly related to their major area of study. A STEM-OPT program for F-1 students with science, tech, engineering or math degrees extends the temporary employment authorization for an additional 24 months.

U.S. news roundup

• The State Department opened this year’s Diversity Visa registration period.
• The Labor Department posted updated H-2A and H-2B processing times.
• The Department of Homeland Security published additional details regarding its announcement that it would extend and re-designate Venezuela for Temporary Protected Status.

Spotlight

Conversation with Nazish Ali and Dave Wagner, BAL senior associates: H-1B trends and planning.

BAL Immigration Report: Employers are beginning to turn an eye toward next year’s H-1B registration lottery. Next week, BAL Partner Maggie Murphy and BAL Senior Associates Nazish Ali and Dave Wagner will host a webinar to kick off H-1B planning. Ali and Wagner joined the BAL Immigration Report this week to give us a preview. We asked Ali if she anticipates another high-volume registration year.

Ali: This year’s cap planning will be complicated by regulatory proposals to modernize the H-1B program and raise USCIS filing fees. The annual limit for H-1Bs are 85,000 visas — 65,000 plus the 20,000 reserved for advanced degree professionals. Since the implementation of the registration process, there has been a steady climb in the registration numbers over the years. In fiscal year 2022, there were over 300,000 registrations with a 43.8% selection rate, and over 400,000 in fiscal year 2023 with a 26.9% selection rate. However, in fiscal year 2024, USCIS did report a record number of H-1B registrations, with over 700,000 with only 14.6% of beneficiaries selected in the first round of selections.

USCIS did attribute much of the significant increase in registrations for fiscal year 2024 due to multiple registrations submitted for the same beneficiary. While it is permissible to entertain multiple job offers and have multiple employers submit a registration on behalf of the same beneficiary, it is impermissible for the same employer to submit multiple registrations on behalf of the same beneficiary. This has raised serious concerns to USCIS, particularly as it relates to the integrity of the H-1B program overall. And in response to this, the agency is looking to modernize the process for the next fiscal year, in hopes to improve the program and reduce the ability for misuse and fraud in the H-1B registration system. We anticipate that these modernization rules/initiatives by USCIS will help stabilize the numbers of registrations, and we’ll likely see still a high volume but something more consistent with the years prior.

BAL: The rule to modernize H-1B requirements and oversight is currently under White House review, and Wagner said it could be in place in time for cap registration. He outlined what employers should expect.

Wagner: We would expect that the H-1B modernization rule may come into effect this year. We have heard it is moving through the proper channels to be implemented. What this would do is the government is trying to improve the H-1B registration process and H-1Bs in general, bolstering the H-1B process to reduce the possibility of misuse and fraud in the H-1B system. A couple of ways that the government is looking to do that is they’re going to try to revise the definition of the term “employer-employee relationship” in order to provide flexibility for startup entrepreneurs. They’re trying to implement new guidelines for H-1B site visits, especially in connection with petitions filed by H-1B–dependent employers. It would try to provide flexibility with respect to the start date of H-1B employment, and it potentially addresses F-1 and H-1B change-of-status cap-gap issues. It might strengthen the H-1B registration process to eliminate the fraud and misuse that has come up in the past, and then it should clarify when an amended or new petition must be filed if there are material changes in the terms and conditions of the H-1B employment. That being said, the H-1B modernization rule is trying to clarify certain parts of the H-1B registration process as well as H-1B petitions in general. So employers should be thinking about how they’re using H-1Bs and the compliance that they are following once they have an H-1B on their staff.

BAL: USCIS’ proposed fee hikes could also impact cap planning, though it’s not clear when the fee hikes will take effect.

Wagner: We’ve heard reports that the H-1B registration fee increase is within the government right now, but we haven’t heard much movement on that. The fee would be proposed to go from a $10 registration fee to $215, and that would likely impact the employer’s decision to support an H-1B registration. So there may be a decreased amount of that for each employer, but alternatively, it is also making employers think, do they handle H-1B registrations in house, or what other alternatives do they have? That is still to be seen if this fee will be implemented within this next fiscal year for the H-1B registration season.

BAL: Some employers hold off on H-1B planning until the new year, though Ali said that there are advantages to planning early, specifically as it relates to finding alternatives for employees who are not selected in the lottery.

Ali: There is a lot of value for employers to start the H-1B planning process as early as possible. This will allow you to review the population and determine if there are alternate pathways available to continue to attract and retain talent. Some individuals may be running out of work authorization and visa options with their current status if they are not selected in the lottery, which can be very stressful to both employer and employees. There are some alternate options that may be available for them, which can include nationality-based visas, extraordinary ability visas available for employees who have made significant contributions in the fields of science, business, arts or athletics, and there’s even an option to park an employee outside the U.S. with one of your foreign entities and have them return to the U.S. after one year in a specialized knowledge and managerial role. All of these options are things that you would want to consider as early as possible to make the H-1B cap selection process as smooth as possible for the user experience. 

BAL: Wagner said beginning H-1B planning now can ease the stress employers and employees may feel as we get closer to registration.

Wagner: From the employer side of things, this is a stressful process sometimes, working through an H-1B cap selection list of who you’re going to be supporting. And the earlier you start preparing that list and really working through internal authorizations and making sure the company will support them and knowing that as soon as possible, that is a key in this process because it alleviates a lot of stress when you get to March of 2024 and you’re starting the registration’s actual submission. You can start it earlier. That does make it easier on everyone, including the employee.

BAL: BAL’s H-1B cap season planning webinar will be held Wednesday, Oct. 11, at 1 p.m. CT. For more information, visit BAL.com/events.

Global news

EU Council extends protection for Ukrainians

In the European Union, the Council of the EU has agreed to extend temporary protection for Ukrainians who have fled their country due to the Russian invasion. The measure will be extended by a year and will now remain in effect until March 4, 2025.

Temporary protection provides refugees displaced from their home country certain rights and support, including residence, access to employment and housing, medical services, welfare assistance and education for children. The Council will formally adopt the decision after it passes legal review and is translated into all EU languages.

Automated immigration clearance in Singapore

In Singapore, the government will introduce a passport-free automated immigration clearance system at Changi Airport in early 2024. Passengers will be free to depart Singapore without passports using only biometric data. Biometrics will be used to create a single authentication token that departing passengers will be able to use at various touchpoints in the airport, instead of repeatedly presenting travel documents. The program will be available to travelers whose countries allow for passport-free immigration clearance.

Global news roundup

• Canada is no longer requiring “upfront” medical exams at the time of application for express entry.
• The government of Brazil reminded its citizens that beginning Oct. 22, Brazilians will need visas to transit through airports in Mexico.
• The United Kingdom’s recently announced immigration fee increases took effect this week. Fees for work visas rose by 15%, while fees for student visas rose by 20%.

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